Charles Kenneth FOSTER, Appellant, v. STATE of Florida, Appellee; Charles Kenneth FOSTER, Petitioner, v. Richard L. DUGGER, etc., Respondent, 518 So. 2d 901

PER CURIAM. Charles Kenneth Foster appeals the denial of a motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and also petitions this Court for a writ of habeas corpus in connection with the death sentence imposed upon him. We have jurisdiction. Art. Y, §§ 3(b)(1), (9), Fla. Const. The facts pertinent to our discussion are simple. Foster was convicted of murder and sentenced to death in 1975.

During the sentencing phase, the prosecutor told the jury that under Florida’s capital punishment system their recommendation as to the death penalty or life imprisonment would not be determinative, as the final decision rested with the trial court. As was the procedure in effect at that time, there was no jury instruction on nonstat-utory mitigating factors. Defense counsel did not object to either the prosecutor’s statements or to the instructions. The jury recommended the death penalty, and the trial judge imposed a sentence of death.

In his appeal from the denial of his motion for postconviction relief, Foster contends that the conduct of the trial violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), in that the jury was told that its role was only to give an advisory opinion, thereby diminishing its sense of responsibility. If there was any validity to this claim, it should have been raised on appeal because Caldwell did not represent a change in the law upon which to justify a collateral attack. Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

Moreover, Foster’s claim could not be sustained on its merits because unlike Caldwell, in Florida the judge rather than the jury is the ultimate sentencing authority. In his petition for habeas corpus, Foster claims that his sentencing proceeding violated the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, — U.S. -, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), in that the jury and judge did not consider nonstatutory mitigating evidence in deciding his sentence.

The record reflects not only the jury instruction condemned in Hitchcock but also the fact that the trial judge felt himself limited to considering the statutory mitigating factors. The sentencing order stated: “The Court finds, from the evidence, that sufficient aggravating circumstances exist as enumerated in subsection (5) of

section 921.-141, Florida Statutes, that justify a sentence of death, and that there are insufficient mitigating circumstances, as enumerated in Subsection (6) of said

Section 921.141, to outweigh the aggravating circumstances.” (Emphasis added.) The fact that the judge, the ultimate sentencing authority, did not consider non-statutory mitigating evidence settles the issue because there was some nonstatutory mitigating evidence that the court could have considered. Hitchcock; Delap v. Dugger, 513 So.2d 659 (Fla.1987); Harvard v. State, 486 So.2d 537 (Fla.1986).

A new sentencing proceeding is mandated “when it is apparent from the record that the sentencing judge believed that consideration was limited to the mitigating circumstances set out in the capital sentencing statute_” Id. at 539. We affirm the appeal of the denial of the motion for postconviction relief. However, we grant the petition for habeas corpus, vacate Foster’s sentence and remand this case to the trial court for a new sentencing proceeding at which all mitigating evidence may be presented to the judge and jury. It is so ordered. MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur.

BARKETT, J., concurs specially with an opinion. . The judgment and sentence were affirmed in Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979). . Foster asserts as nonstatutory mitigating factors his long history of mental illness and treatment, his intoxication at the time of the murder, and his remorse for the commission of the crime. . Hitchcock left open the possibility of harmless error, an issue the state did not brief in this case. The main thrust of the state’s argument here is that the Lockett issue is procedurally barred.

This Court has settled that question adversely to the state in Riley v. Wainwright, 517 So.2d 656 (Fla.1987).